Even putting aside the issue of state reimbursement, it seems to me that a lot of costs would not be borne by the county. For example, in some (most?) jurisdictions, public defenders are funded by the state.
But anyway, if you want to argue that the death penalty is too expensive for some counties, then you may have a point. Prosecutors need to exercise discretion, and one issue they need to consider is what prosecutions are the best use of their resources.
In theory, the value of deterrence could be estimated. But retribution? It’s just a matter of personal values. For me, it’s worth the money. For the people of Texas? Seems it’s worth the money. For the people of East Bumblefuck County? Maybe not.
OK. I had a chance to ponder this over night (and of course wish I knew a lot more about takings law). There is a difference in my mind. First is I am very uncomfortable with takings law being extended in that way in the first place, and on the surface it seems unconstitutional to me - contrary to the clear meaning of the text. But that isn’t a good enough argument here.
The difference comes to me if I turn your argument round. You maintain I am reading one part of the constitution to rule out another part. Well, that is the impression I am getting from you, as well. Under your interpretation, it seems like the ban on cruel and unusual punishments can never apply to the death penalty. As you agreed, it isn’t a standard set in stone; if society reaches a point where the DP is considered cruel and unusual, the Eighth is rewritten to say “nor cruel and unusual punishments inflicted, unless that cruel and unusual punishment be killing the person.” And that seems to be eliminating much of its purpose.
That kind of conflict isn’t present with takings - by reading the takings clause in a manner to permit takings, you aren’t eviscerating other constitutional protections that I can see (or could see while this fucking kept me awake at 3 this morning, thank you very much). The Bill of Rights is about limiting government power, and reading into it a permanent power of government to do something strikes me as irrational.
I hope this makes some degree of sense - I am running off to a meeting, but will be happy to expand on it later.
Meeting bumped by 15 minutes, so I have time for this.
Bricker/Ravenman - do you find the string of cases that find the DP unconstitutional for certain crimes as being wrongly decided? Because if not, isn’t your stance somewhat meaningless, as couldn’t the Court quite legitimately chip away at the constitutionality of the DP through the 8th, leaving it available only, say, for treason, arson in thr royal docklands, and piracy with violence?
Such a amendment would never be required under the reading that Bricker, the courts, and I share. We see the Constitution as saying that the death penalty is allowed and cruel and unusual punishments not allowed. If one wanted to outlaw the death penalty, the government would either have to pass a constitutional amendment or simply decide (by law, commutation, or other mechanism) that it’s a power that the government no longer wishes to exercise. Since the death penalty is already a part of the Constitution, there is no need to amend the Constitution to make it legal; it’s already in there.
Earlier I referenced the Tenth Amendment, which says that powers not specifically given to the Federal government are reserved to the states or the people. Since you noted before that there is no specific clause of the Constitution that says “the government may execute people,” there is also no clause that says “the government may seize property.” If we’re being consistent on the logic of the argument, one could make a case that the vague protection of unenumerated rights in the Ninth and Tenth Amendment could call into question the power of eminent domain, in the same way that you argue the Eighth Amendment’s unspecific prohibition of cruelty calls into question the power to execute criminals.
I’m afraid I don’t know which cases those would be.
sigh. I don’t have the energy to debate the death penalty again. But since you want to talk about it on the basis of expense, I’ll just note that it makes me sad when people act as though justice should be a for-profit enterprise.
Coker v. Georgia, 433 U.S. 584 (1977) says the DP is unconstitutional under the Eighth for rape. Kennedy v. Louisiana, 584 U.S. ___ (2008) has the same ruling for child rape.
In essence, except for crimes against the state, if you didn’t kill a person, the Court has pretty much said it is cruel and unusual to execute you.